Judgment

SUBBA RAO, J. : I regret my inability to agree. The facts are fully stated in the judgment of my learned brother Shah, J. It would, therefore, be enough if only the relevant facts were stated. The Respondents are dealers in pepper and other condiments. For the year 1950-51 they submitted their return under the Madras General Sales Tax Act, 1939, wherein they claimed exemption in respect of certain transactions on the ground that they were commission sales exempted under S. 8 of the said Act. The Deputy Commercial Tax Officer, Cannanore (Rural) gave the exemption claimed and assessed the tax on the turnover relating to transactions other than those exempted. The Deputy Commissioner of Commercial Taxes, Coimbatore Division, called for the record of the case of the respondents for the said assessment year, and in exercise of the powers under S. 12 (2)(i) of the Act directed a fresh enquiry in respect of the said exemption. He issued a notice on February 9, 1956, calling upon the respondents to show cause against the proposed revision of assessment. On the basis of fresh evidence, the Deputy Commissioner of Commercial Taxes came to the conclusion that the respondents did not act as commission agents but carried on the business of "outright purchase and sale" in respect of the entire turnover. On that finding, he revised the order of the Deputy Commercial Tax Officer and assessed the respondents on a larger turnover.

2. The short question is whether the Deputy Commissioner of Commercial Taxes has jurisdiction under S. 12 (2)(i) of the Act read with the relevant rule, R. 14-A to make the order he did.

3. It is well settled that a subordinate provision, if inconsistent with the Act, must give way to the Act. Though there is an apparent conflict between a section of the Act and a rule made thereunder, an attempt should be made to reconcile them; that is to say, the rule may be so construed, if the phraseology permits it, as to make it consistent with the Act. If it is not possible, the rule must be struck down.

4. It is obvious that the rule cannot override S. 12 of the Act. If S. 12 does not give jurisdiction to the revisional authority to make a fresh enquiry and decide the case on merits, R.14-A cannot confer on him such power, for R. 14-A in that event comes into conflict with S. 12 of the Act and must, therefore, yield to it.

5. This leads us to the question whether the revisional jurisdiction conferred under S. 12 of the Act enables the authority concerned to make a fresh enquiry after issuing notice to the dealer concerned and determine the question of assessment on merits. The Act provides for appeals in some cases and revisions in other cases. Under S. 11 (1) of the Act any assessee objecting to an assessment made on him may, within 30 days from the date on which he was served with the notice of assessment, appeal to such authority as may be prescribed; under S. 11 (3), the appellate authority may, after giving the appellant an opportunity of being heard, pass such orders on the appeal as such authority may think fit. Under S. 12 (2) of the Act, the revisional authority may suo motu "call for and examine the record if any order passed or proceeding recorded under the provisions of the Act by an officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order, or as to the regularity of such proceeding, and may pass such order with respect thereto as he thinks fit". When the Legislature confers a right of appeal in one case and a discretionary remedy of revision in another, it must be deemed to have created two jurisdictions different in scope and content. When it introduced the familiar concepts of appeal and revision, it is also reasonable to assume that the well-known distinction between these two jurisdictions was also accepted by the Legislature. There is an essential distinction between an appeal and a revision. The distinction is based on differences implicit in the sai